Mr Steven Hender v Orica Australia Pty Ltd

[2014] FWC 7479

[2014] FWC 7479

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Steven Hender
v
Orica Australia Pty Ltd
(C2014/6566)

COMMISSIONER SPENCER BRISBANE, 28 OCTOBER 2014

Application to deal with contraventions involving dismissal - application filed out of time - extension of time - awaiting return of documents forming evidence

[1] On 29 September 2014, Mr Steven Hender (the Applicant) made an application to the Fair Work Commission (the Commission) to deal with a General Protections dispute wherein the Applicant alleged he had been dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (the Act).

[2] The Applicant alleged that he had been dismissed by Orica Australia Pty Ltd (the Employer/Respondent) as a result of making an anti-bullying complaint earlier in the year, and that this led to his later selection for redundancy. The Applicant’s position was made redundant on 21 May 2014.

[3] The application was lodged some 131 days after the termination date. The Respondent objected to the application as it was lodged out of time. The application is required as per s.366(1)(a) of the Act to be lodged within 21 days after the dismissal took effect.

[4] Directions were set for the provision of material in relation to the jurisdictional objection and a conference was held in the matter. It was agreed by the parties that the matter may be determined on the papers and additional Directions were set for the Applicant to provide a response to the Respondent’s materials.

[5] Not all of the evidence and submissions provided are referred to in this decision; however, all have been considered in making the determination.

Relevant legislation

“365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

Summary of submissions and consideration

[6] The criteria in s.366(2) are addressed as follows:

s.366(2)(a) - the reason for the delay

[7] The Applicant predominately argued that the reasons for the delay were related to his efforts to have the Employer return his work diaries and particular documents, that the Applicant stated he required, to justify the link between his prior anti-bullying application and the resulting redundancy. In addition, he stated the diaries and documents would demonstrate (by reference to the various emails and records of conversations), that the Employer had trained an alternative employee to undertake his job.

[8] The Applicant submitted that the main reason for the delay was that the Respondent, despite his requests, had not returned his personal items from his accommodation at the Mine site. The Respondent submitted that the Applicant had not mentioned, in these requests, the diaries or notes that he was requiring, nor were these included on the two written lists the Applicant provided for reimbursement of the items, when the Respondent could not locate his belongings.

[9] The Applicant submitted that he considered he had to be purposefully circumspect about retrieving the diaries, given these were required to substantiate his application. The Applicant stated he was concerned that if he drew the Respondent’s attention to the existence of these notes and documents, they would not return such, thus damaging his case.

[10] The Applicant submitted as follows in relation to the omission of these items from the lists:

“...10. In Orica’s Response they have stated that I did not disclose in my two lists of items to them that within my possessions were diaries & notes. I respond

a. I compiled the first list which contained items which were large and would assist them to find my lost possessions

b. The second list was for insurance purposes to estimate the replacement value of lost items. These pieces of paper and diaries had no financial worth and were not included for this reason....” 1

[11] The Applicant provided a phone log for one call to the Respondent on 21 May 2014, following up on his belongings. The Applicant sets out that he was advised on 4 August 2014, that his belongings could not be found, and after this he engaged with the Respondent on investigations into the lost items.

[12] In terms of the period of the delay, the Applicant has argued he could not file his application until he was in possession of the diaries. However, the period of the delay after the date (4 August 2014) when he was first advised that his items could not be located and when he filed the application (on 29 September 2014) was 56 days.

[13] The Applicant submitted in his response to the Respondent’s submissions as follows:

“...9. To the Respondents comments that I have not accounted for the whole period the application was delayed I submit the following:

a. On 14th May I had an immediate conversation with Mick Vanderheld at my Redundancy interview requesting my belongings be returned. His response was that he would take care of it. (see witness statements of Mick Vanderheld and Sarah Hender)

b. On the 21 May 2014, the official day of my Redundancy, I phoned Jason Hatcher (Shotfirer at Encham Coal Mine) to follow up and make sure of the return of my items. He also said he would arrange this for me. I provide the following telephone log for the month of May 2014 as supporting evidence:

Date Time Origin Destination Description Duration Cost

2014-05-21 11:45:32 (numbers omitted) Mobile Call 00:02:00 $2.37

c. During June and July I made additional follow-ups phone calls from my new work phone, sometimes speaking with Jason and other times leaving messages

d. On the 4th August 2014 on one of my follow up calls to Jason Hatcher I was told by him that my items had been lost.

e. Between 4 August 2014 and 23 September 2014 Mick Vanderheld undertook investigations into tracking down the lost property by email communications

f. On 23rd September 2014 in a phone conversation with Mick Vanderheld he notified me that they had tracked down the ESS cleaner who cleaned out my room and which had not helped them to find my items.

g. On 24th September 2014 by email Mick Vanderheld acknowledge the loss of my items and offered me compensation of $500

h. On 30th September 2014, I lodged this General Protections Application 6-7 days after this critical information concluded the investigation and gave me no hope of ever seeing my possessions again...” 2

[14] The Applicant was aware the application had to be filed within 21 days. In his response to the Respondent’s submissions, the Applicant stated as follows:

“...5. I knew that in order to lodge a General Protections application with Fair Work Australia and to put forward my best case I needed my work diaries, notes, names and conversations from my room at Ensham regarding:

a. my forced redundancy 4 months after making a stand against bullying,

b. the discrimination I received from being transferred to a mine site which was known to be downsizing and the stressful drawn out way this was conducted

c. Orica unfairly training a receptionist to take over my Bench Assistant role which is in breach of the Fair Work Australia Act section 389.

6. I was faced with the conflicting option of lodging an application on time within the 21 days without my diaries and notes, or to hold off lodging an application and waiting for my items to be returned, then to lodge an application and if needed to apply for an extension of time...” 3

[15] The Respondent stated that they were unsure how the Applicant’s personal items were disposed of. The Respondent stated that the Applicant’s enquiries were followed up with the contract cleaning company and the Respondent provided evidence in relation to these matters and the associated insurance claim for his items.

[16] Whilst the Applicant referred to a number of telephone conversations and further emails regarding locating these particular items, these endeavours (or the reasoning for such) do not substantiate the full length of the delay.

s.366(2)(b) - any action taken by the person to dispute the dismissal

[17] The Respondent stated that at no time, as part of these enquiries for his personal items or any other time after the notification of the redundancy, did the Applicant state that he was challenging the dismissal. The first time, the Respondent stated, they were aware that the Applicant was disputing his redundancy, was when the application was filed more than 100 days after the date for lodgement. On the material, apart from requesting his items, the Applicant had not taken any other action during the period of the delay to dispute the dismissal.

s.366(2)(c) - prejudice to the employer (including prejudice caused by the delay)

[18] The Respondent submitted that it would be subject to prejudice caused by the delay by having to deal with the Applicant’s application disputing a redundancy carried out more than four months ago. Given the limited material provided, I have not attributed weight to this criterion.

s.366(2)(d) - the merits of the application

[19] The Respondent refutes that the termination (by way of redundancy) of the Applicant’s position was in any way connected to the Applicant’s prior anti-bullying complaint. The Respondent’s submissions indicated that the complaint was investigated and found to be unsubstantiated. However, the Respondent stated, in response to the Applicant’s complaint and in terms of goodwill, that they agreed to transfer the Applicant to Ensham Mine. In proposing to transfer the Applicant, the Respondent stated it was transparent in setting out to the Applicant that this mine may potentially be downsized in the future.

[20] In addition to the alleged nexus between the redundancy and the anti-bullying application, the Applicant also argued that an alternative employee was trained to take his position, also in response to him making the bullying complaint. In this respect, the Applicant also cited that he had been subject to discrimination and undue influence or pressure, in terms of s.344 and misrepresentations, as per s.345 of the Act. The Respondent stated that it was unclear as to the basis for those allegations made by the Applicant and therefore they could not appropriately respond to such. However, they denied any connection between the alleged issues and the redundancy.

[21] There was significant disparity between the positions of the parties related to the allegations of the breaches of workplace rights that the Applicant submitted led to his selection for redundancy. Given this disparity, I have adopted a neutral position in relation to the merits of the application.

s.366(2)(e) - fairness as between the person and other persons in a like position

[22] The Respondent stated that it would be unfair to other Applicants in similar circumstances, to allow the extension of time in circumstances where appropriate reasoning has not been provided to justify the delay by the Applicant.

[23] This criterion was not particularly addressed by the Applicant and therefore to the extent it is relevant in the current circumstances, I have adopted a neutral position in this regard.

Exceptional circumstances

[24] The Applicant’s central reasoning for the delay in making the application was based on his endeavours to secure his personal belongings from the Respondent. He considered that it was inappropriate to make the application, prior to having the evidence to justify the allegations in the application.

[25] The Act requires the Commission to be satisfied that there are exceptional circumstances, in order to extend the period of time for a person to make an application to deal with contraventions involving dismissal. The term ‘exceptional circumstances’ has been dealt with in s.394 extension of time applications. These authorities are relevant to the current test in General Protections matters. In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services 4 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)5 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” 6

[26] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 7

Conclusion

[27]  Taking into account all of the circumstances of this matter, I do not consider that the reasons provided by the Applicant justifies exercising the discretion to extend time for the significant period of the delay.

[28] When the Applicant did make his application (after the period of the delay), no reference was made to the conversations or material, that he alleged were contained in the diaries and documents that were necessary to progress the application.

[29] The Applicant submitted that, despite knowing there was a 21 day timeframe for lodging the application, he considered that the diaries contained such critical information that he had to have them prior to lodging. The Applicant explained that he had a set of belongings he kept at his workplace 'home' and a set at his residence and that he had left his work diaries on his desk in his work quarters. Given the alleged essentially damaging nature of the records (he had made) about the Respondent’s conduct and his concern that if he alerted the Respondent to their existence, it may prompt the destruction of them, it is surprising he left them on his desk in the work accommodation (a significant distance away), and did not maintain custody of such.

[30] The Applicant’s lack of explanation for the period of the delay of almost two months, when he was aware the documents could not be located, undermines his reasoning and leaves a significant period of the delay relatively unexplained. This must be considered in circumstances where the Applicant was aware that the timeframe for lodgement was 21 days. The Applicant’s reasoning did not provide an impediment to him filing the application much earlier and within-time. Accordingly, the basis for the delay, together with the unexplained period of the delay, does not justify exercising the discretion to extend the timeframe.

[31] I am not persuaded that the reasoning provided is commensurate with the test of exceptional circumstances, required to allow for the exercise of the discretion to extend time. Pursuant to s.366 of the Act, the application made under s.365 is jurisdictionally barred and is therefore dismissed.

[32] I Order accordingly.

COMMISSIONER

 1   Applicant’s Response to Respondent’s Objection filed 24 October 2014, at [10]

 2   Applicant’s Response to Respondent’s Objection filed 24 October 2014, at [9]

 3   Applicant’s Response to Respondent’s Objection filed 24 October 2014, at [5] - [6]

 4  Wheelan C, [2009] FWA 1638, [30] and [31].

 5   Lawler VP, [2010] FWA 1394.

 6   In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

 7   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

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